State v. Burke , 2 Gill 79 ( 1844 )

Stone, J.,

delivered the opinion of this court.

The question presented upon this appeal is whether the surrender by the securities of Burke, the principal in the bond, and his commitment to the sheriff by order of St. Mary’s county court, is such performance of the condition of said bond, as discharges the securities from its liability.

According to the provisions of the acts of Assembly of this State for the relief of insolvent debtors prior to 1834, a petitioner for the benefit of these laws might be compelled to give bond, with security, for his appearance before the court of the county in which the petition was filed, or the commissioners in Baltimore city, as the case might be, at a time specified ; and give notice to creditors of his application, as to enable them to resist, if they saw fit, his final discharge; and in case the final discharge was successfully resisted, the petitioner being present in court, his creditors might have such remedies affecting his personal liberty, as are provided by law.

The object and character of these bonds have been assimilated to bail bonds; if the petitioner failed to appear at the time specified, the bond was forfeited, and his securities became bound to each creditor for the amount of his claim. This was found to press with rigor upon securities, who were like bail, bound for the appearance of the principal in the bond, but had none of the power to relieve themselves which bail enjoyed, until by the act of 1834, the legislature passed an act for their benefit, and thereby gave similar power and authority to the securities which special bail had, to surrender the petitioner at any time at or belore the first court to which suit was brought upon the bond. This act was passed before a breach of the condition of the bond in this case had occurred. The right.of the creditor to sue did not attach until the petitioner had failed to appear according to the condition of the bond, and the remedy upon the bond was subject to be controlled and modified by the provisions of the above mentioned act of Assembly,

The facts alleged in the rejoinder being admitted by the demurrer, and all errors in pleading being by consent released, it is evident, that the surrender by the securities of the petitioner, and the order of court committing him to the custody of the sheriff, are within the provisions of the act of Assembly, and the securities are entitled to the benefits thereby provided for them. They have proceeded according to the power and authority conferred, and so far as the act is directory to the court, “omnia rite acta praesumuntur” and although years had elapsed after the time specified in the condition of the bond for the appearance of the petitioner, and although he did not in fact appear, yet this lapse of time is attributable to the creditor in not pursuing his remedy, and when at the first court suit was brought upon the bond, the petitioner was surrendered, he had all the remedies affecting the person of the petitioner provided by law. He is therefore not injured, and has no cause of complaint. judgment affirmed.